Access to environmental information

Access to justice in environmental matters means, in essence, three things. These are that:

people have proper information about environmental matters, that is, decisions which have environmental impacts

people can have their say in decision-making about such matters

decisions on environmental matters can be properly challenged

Examples of how access to justice is important in areas like planning can be seen when a major new development, like an incinerator or superstore, is proposed. This might concern a whole community. The local community will need proper information to participate in the decision making process. The community may have legitimate environmental concerns and may need access to a court or tribunal to challenge decisions made.

International agreement

In May 2005, the UK Government signed up to addressing some of these problems by agreeing to implement the Aarhus Convention (the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters). This is named after the Danish town where this international agreement was signed. This links environmental rights and human rights.

Aarhus has three main themes (or “pillars”):

Access to information – public bodies should provide information and respond to requests for it (this pillar is implemented in the UK through the Environmental Information Regulations 2004)

Public participation – the agreement sets out minimum requirements for public participation in various kinds of environmental decision making;

Access to justice – this means getting the right procedures in place so that no one faces barriers to justice in environmental matters (e.g. not having to face excessive costs if you take forward a legal challenge)

UK Government and Aarhus

There have been criticisms that the UK Government has not fully implemented the Aarhus Convention. The procedures should be "fair, equitable, timely and not prohibitively expensive". However, the UK has transposed the Aarhus Convention by relying on existing judicial review procedures (the procedure by which a decision of a public body may be challenged in the courts) and critics feel that such procedures make for an ineffective transposition. As a result, it is suggested that the main barriers to access to justice in the UK are:

not being able to get your day in court for a (“judicial review”) on anything but legal grounds (disagreeing with a proposal is not sufficient grounds for a challenge)

the costs of the litigation. People who bring a legal challenge unsuccessfully might face having to pay the costs of the winner, which could be substantial. Also, there is the risk, albeit low, of having to pay the costs of interested parties - those who are likely to be directly affected by the judicial review application and therefore join in the proceedings - which could turn out to be substantial.

securing public funding for environmental cases. Aarhus makes express recognition of the fact that some people may need financial assistance in order to secure access to justice but public funding in the UK cannot be relieved upon for this. This means that only people with more money are likely to be successful and, therefore there is no access to justice for all.

The report of Lord Justice Sullivan, who chaired an independent panel on access to justice in environmental matters, published in May 2008 (which can be viewed below) considered that, in contravention of the Aarhus Convention, costs would be 'prohibitively expensive' if they prevented an ordinary member of the public not entitled to public funding from embarking on a legal challenge. The report suggests that a 'Protective Costs Order', capping potential exposure to costs should an application fail, would be a helpful way of meeting the requirements on access to justice.

The European Commission is pursuing some of these concerns through infringement proceedings against the UK government. The Commission is claiming that the UK government has failed to give effect properly to relevant European law due to the high cost of legal action to protect the environment. It issued a Reasoned Opinion (effectively a final written warning) in March 2010 setting out why it considers the UK to have failed to comply with its obligations.

The Commission is concerned with the cost of environmental proceedings preventing people from bringing legal challenges, particularly the requirement for applicants to give expensive "cross undertakings in damages" (undertakings to compensate defendants) before interim injunctions are granted by the courts. The Commission has also concluded that certain Directives, such as the Environmental Impact Assessment (EIA) Directive, required by the Aarhus Convention have not been fully transposed into UK legislation and applied in practice. If the Commission is not satisfied with the UK Government's response it may refer the matter to the European Court of Justice.

Jackson Report on Costs

In January 2010 UKELA welcomed the recommendations of the Jackson Review on Costs which puts environmental claims on the same footing as others.One of the main recommendations of the review is for "one way costs shifting" whereby a defendant will be ordered to pay a claimant's costs if the claimant wins but the claimant will be ordered to pay the defendant's costs if the defendant wins. The current risk of a claimant having to pay for the costs of the defendant if the latter wins puts many people off bringing environmental cases – the so-called “chilling effect”.In a recent example, local residents challenging a smelly composting site, near Bristol, in a private nuisance action faced a £25,000 legal bill for the costs of the other side.“We welcome the simplicity and overall effect of the proposed qualified one-way costs shifting in judicial review cases. UKELA has argued for a uniform approach to costs in judicial review rather than different rules for environmental cases and we’re pleased that this was accepted in the final report which was published last week”, said Richard Kimblin, convenor of UKELA’s environmental litigation working party.

The Government will consider the Jackson report and its intentions will be published in due course.

Coalition on access to justice for the environment

Several UK NGOs have formed a coalition to raise these concerns. Members include the Environmental Law Foundation, Friends of the Earth, Greenpeace, the Royal Society for the Protection of Birds, the Worldwide Fund for Nature and Capacity Global. The Coalition does not have its own website yet.

This page was printed from the website of the UK Environmental Law Association
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